Choi v Commissioner of Police, New South Wales Police (No 2)

The Court: Jai Hee Choi sought leave to appeal from a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal. The application was heard on 21 May 2021 and determined on 31 May 2021: Choi v Commissioner of Police (NSW) [2021] NSWCA 113. In that judgment, we made the following orders:

By notice of motion dated 12 June 2021, Ms Choi moves the Court to set aside orders (2) and (3) and to grant the relief sought in her initial summons and notice of motion. She also seeks various amendments to the judgment as published, including an amendment to the catchwords on the coversheet.

The notice of motion invokes rr 36.15, 36.16 and 36.17 of the Uniform Civil Procedure Rules 2005 (NSW). Rule 36.15 confers power to set aside a judgment or order of the court if it is shown to have been given or made irregularly, illegally or against good faith. The focus of that rule is on the steps taken to enter or make the judgment or order, “not on the merits of any decision, or the irregularity of other steps in the proceedings, or in the proceedings below”: Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387 at [16].

Rule 36.16 confers a broader power which includes power to set aside or vary a judgment or order where a notice of motion is filed within 14 days after the judgment or order is entered, as occurred here. The exercise of that power ordinarily requires demonstration that the Court proceeded under some “misapprehension”; the rule is not designed to permit re-litigation of issues decided by the Court: Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2019] NSWCA 187 at [13] (Simpson AJA; Bell P and Macfarlan JA agreeing at [1] and [2]), citing Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302; [1993] HCA 6.

Rule 36.17, commonly known as the “slip rule”, confers power to correct a clerical mistake or an error arising from an accidental slip or omission in a judgment or order.

Ms Choi relied on her affidavit affirmed on 12 June 2021, her affidavit affirmed on 12 July 2021 and written submissions dated 12 July 2021 and 13 September 2021. Her affidavit of 12 June 2021 specified 8 grounds for the relief sought which were expanded upon in the later material. None of the matters raised by Ms Choi establishes a basis for setting aside the orders entered on 31 May 2020.

Ground 1 contends:

Ground 2 is:

Ground 3 is headed:

Ground 6 is headed: “Bias”. Ms Choi's complaint under that ground is that the Court requested her to respond to the respondent’s submissions which she describes as “brand new assertions”. She further complains that the Court gave her five minutes to reply to the respondent’s 20-minute brand-new assertions. Those are the time limits routinely imposed in an application for leave to appeal. They do not indicate bias against Ms Choi; they apply to all parties in an application for leave.

Ground 7 complains that the Court dealt with Ms Choi's Notice of Motion dated 20 May 2021 although it had not been filed. The complaint concerns the fact that Ms Choi was ordered to pay the costs of that motion. She submits it is “impossible for this chamber to dismiss my notice of motion which was not filed with costs”.

She further submits that, as neither the Court nor the respondent said anything about the Notice of Motion during the proceedings, the costs “are nothing”. If that is correct, it is a matter for a costs assessor. The fact that the motion had not been filed in the registry is an irregularity but did not deprive the Court of power to determine the relief sought by Ms Choi in that document, which she provided to the Court.

Finally, ground 8 is headed:

For those reasons, Ms Choi’s motion dated 12 June 2021 should be dismissed with costs.